"Are CBD products legal in my state?"

October 25, 2019

One would assume that the answer to this simple question will be just as direct. However just as lawyers say, “it depends”. With the absence of federal guidelines and regulations, states are taking this matter individually and either passing laws or leaving it in the gray area. For this post we tried to gather quick anecdotes about states to give a general idea on what to look for and what to expect.

First, it is crucial to understand that CBD products are not necessarily legal without any restrictions due to the passage of the 2018 Farm Bill. States have the jurisdiction to ban certain types of products, or require specific testing, labeling or packaging as they are approaching this novel product category with caution.

THC (tetrahydrocannabinol) content in CBD products is one of the reasons why consumers are hesitant. Although states are regulating the standards, there is no way to know for sure the amount of THC besides trusting the brand and label. To solve this issue and reassure consumers, Indiana, Oregon and Utah require QR codes on packaging labels aiming to help consumers make educated purchases, verify the standards of the products from seed to sale, see dosage information and any warnings. New York is also getting ready to jump on this bandwagon. New York’s pending bill also sets standards for plant growing and lab testing.

The California Department of Public Health issued a statement in July 2018, stating that “hemp-derived CBD oil and CBD products are not an approved food, food ingredient, food additive or dietary supplement and cannot be used in any human and animal food.” The same statement also clarifies that seeds derived from industrial hemp, industrial hemp seed oil, and hemp seed oil derived from industrial hemp will be allowed in food as long as there are not any claims for health benefits. California is in the process of passing a law regarding industrial hemp products in food, beverage and cosmetic products. With this pending regulation, lawmakers in California seek to define industrial hemp and industrial hemp products and require warning labels for pregnant or nursing women as well as product testing standards for food, beverage, or cosmetic containing cannabidiol derived from industrial hemp.

Massachusetts and Hawaii do not allow adding CBD to food products, dietary supplements, and any product that makes therapeutic/medicinal claims. Meanwhile, after banning CBD-infused foods for almost 3 months and receiving backlash, Maine declared that the inclusion of hemp does not make food or food additives adulterated based solely on the inclusion of hemp or any part of the hemp plant. The Act states, “non-pharmaceutical or non-medical production, marketing, sale or distribution of food or food products within the State that contain hemp or any part of hemp plant may not be restricted or prohibited within the State based solely on the inclusion of hemp or any part of the hemp plant.”

While some states require third party lab testing, others are going further and taking the responsibility of testing and labeling themselves. Ohio recently legalized CBD oil sales, and according to state regulations, all CBD products will be tested by the Ohio Department of Agriculture for safety and accurate labeling. Minnesota is also one of the many states that requires specific labeling and testing, according to Minnesota Board of Pharmacy, any CBD product that does not meet the standards will be considered as misbranded or adulterated drugs. Setting national standards on testing is vital for CBD products as safety concerns increase alongside growing demand. Although CBD products are legal in Alaska, the Department of Law Consumer Protection Unit issued a warning regarding unregulated and untested CBD products sold throughout the state.

Considering how popular this market is, even as we are writing this post, law is evolving and changing. States are constantly amending their regulations based on public backlash or developing health and safety issues. Most of the regulations we mentioned here passed in the past year or are currently pending for legislative action. Which means it is important to stay up to date with the regulatory landscape; following pending legislation in each state, keeping up with statements from health or agriculture departments, state attorney’s offices, and police departments and doing your due diligence before entering each state will save you from future troubles. As the FDA is still looking into more scientific data and research on CBD, it can be expected that more states will come up with new or amended regulations while they wait for federal guidance.